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26. Reporting, Prosecution and Pre-trial Processes

Recognising and reporting sexual assault

26.26 The first step in
engaging with the criminal justice system following sexual assault involves the
complainant understanding that what happened to them constitutes a sexual offence.
There is a wide range of acts of sexual violence that a victim may experience
as part of family violence, many of which constitute a sexual offence under criminal
law.[38]

26.27 As discussed in
Chapter 24, many women may find it difficult to recognise what an intimate
partner or family member has done to them is a sexual assault. WESNET—The
Women’s Services Network submitted that:

Workers report that quite often women do not see what they
have experienced as sexual abuse until the worker provides a definition. At
that point many women acknowledge that they have experienced sexual violence.[39]

26.28 Particular groups of
women may face special difficulties in recognising sexual assault. For example,
for some Aboriginal and Torres Strait Islander women the ‘normalisation of
violence’; or for women from culturally and linguistically diverse (CALD)
backgrounds, lack of knowledge about the Australian legal system may make it
difficult to identify the harm suffered as a criminal offence—as can the fact
that ‘in some traditional cultures there may not be a concept of sexual
violence occurring in marriage and no definitions of consenting sexual
activity’.[40]

26.29 More generally, women
and other victims of sexual assault may lack knowledge about the options that
they have, and the mechanisms that are available to assist them in reporting
sexual violence and engaging with the criminal justice system.

Barriers to reporting

26.30 Where victims do recognise
that what happened to them is a criminal offence, in many instances they may
decide not to make a report to the police in any event. Numerous surveys show that
the majority of sexual assaults never enter the criminal justice system because
few victims report sexual assaults to the police.[41]

26.31 There are several
reasons underlying some victims’ reluctance to disclose sexual assault or
report sexual assaults to the police, including considerations related to: the
relationship that they have with the perpetrator; fear of the perpetrator; how
serious the victim perceives the assault to be; lack of confidence in the
criminal justice system to assist; previous experiences with reporting; and
notions of privacy, shame, trauma and stigma.

Rape is a severe, profound violation of the physical,
emotional, psychological and spiritual self and the trauma of sexual assault
and violence can ‘suppress’ sexual assault as a coping response. Women and
children may be so harmed by sexual assault they are unable to even articulate
the offence. Women and girls may also be well aware that the law does not
respond sensitively to rape, and this fear is especially valid for Aboriginal
women and girls.[42]

26.33 Where sexual assault
occurs in a family violence context, there are additional factors associated
with the nature and dynamics of family violence which mean victims may not
report the assault to police. These factors may include, for example, an
ongoing relationship between the victim and perpetrator; economic dependence
and potential homelessness; the presence of children; and other avenues for
redress such as civil protection orders.

26.34 While some barriers to
reporting sexual assault are unique to the victim, others are heavily
influenced by more general characteristics and factors including: the victim’s
age; disability;[43] geographical location;[44]
sexual orientation or gender identity;[45] and race or ethnicity.

26.35 For example, children
as victims of sexual assault face specific barriers to disclosure, particularly
in a family violence context. These include: fear of not being believed; ‘fear
of family breakdown’; ‘a sense of ongoing responsibility’ for the stability of
the family or safety of siblings and other family members; and fears for their
own personal safety.[46]

family and community pressure concerning speaking out about
sexual assault, including a culture of blame being shifted to victims;

feelings of guilt and shame as well as privacy concerns
associated with not wanting issues publicly aired;

the potential for retribution from the perpetrator and the
perpetrator’s family as well as the victim’s own family and community;

issues associated with police, including: lack of permanent
police presence in some communities; past inappropriate police responses; lack
of Aboriginal and Torres Strait Islander or female police officers; as well as
fear of police attention in light of other matters such as outstanding arrest
warrants;

Women may also have a strong internal sense of responsibility
to protect their family/community identity and reputation. There may also be
cultural values and traditions that foster violence against women and children
that remain unchallenged in CALD communities, and gender related roles that may
result in restrictive behaviours, beliefs and institutional arrangements.[49]

26.39 Finally, McGlade
pointed out that both Aboriginal and Torres Strait Islander and CALD women face
common institutional and structural barriers, including discrimination in the
form of sexism and racism which in turn contributes to women’s reluctance to
report sexual assault.[50]

Reporting to the police

26.40 Where a victim
recognises that a sexual assault has occurred and is willing to make a report,
the next step in engaging with the criminal justice system about a sexual
offence is to make a report to the police, or have the offence notified to the
police in some way (for example through a parent, teacher, doctor or
neighbour).[51]

26.41 Stakeholders
emphasised that the initial response of the criminal justice system is vital,
not only to ensuring that subsequent stages function effectively, but also to
minimise the trauma of the process for complainants.[52]
Consequently, where sexual assault is reported, the response of the police is
vital to the complainant’s decision to continue to pursue their complaint. As
the VLRC observed:

How the police are perceived by people who report an assault
and the quality and consistency of their investigative and decision-making
practices will have a major impact on reporting and prosecution patterns.[53]

26.42 In light of this and
the barriers to reporting outlined above, the function of police should include
protecting and supporting victims.[54] The issue of specialised
police responses and investigation as well as other aspects of victim support
and liaison are discussed in more detail in Chapters 29 and 32.

[41]See, eg, Australian Bureau of Statistics, Sexual Assault in Australia: A
Statistical Overview (2004), 57; J Mouzos and T Makkai, Women’s Experiences of Male Violence:
Findings of the Australian Component of the International Violence Against
Women Survey (2004), 102.

[43]
For further discussion see for example: S Murray and A Powell, Sexual Assault and Adults with a Disability: Enabling Recognition, Disclosure and a Just Response (2008), prepared for the Australian Centre for the Study of Sexual Assault; Melbourne Disability Discrimination Legal Service, Beyond Belief, Beyond Justice: The Difficulties for Victims/Survivors with Disabilities when Reporting Sexual Assault and Seeking Justice: Final Report (2003); J Keilty and G Connelly, ‘Making a Statement: An Exploratory Study of Barriers Facing Women with an Intellectual Disability When Making a Statement about Sexual Assault to Police’ (2001) 16(2) Disability and Society 273.

[44]
For further discussion, see for example: L Bartels, Emerging Issues in Domestic/Family Violence Research (2010), prepared for the Australian Institute of Criminology; D Parkinson, Partner Rape and Rurality (2008), prepared for the Australian Centre for the Study of Sexual Assault, 21; A Neame and M Hennan, Responding to Sexual Assault in Rural Communities (2004), prepared for the Australian Centre for the Study of Sexual Assault.

[45]
For further discussion, see for example: L Bartels, Emerging Issues in Domestic/Family Violence Research (2010), prepared for the Australian Institute of Criminology; W Leonard, A Mitchell, S Patel and C Fox, Coming Forward: The Underreporting of Heterosexist Violence and Same Sex Partner Abuse in Victoria (2008), prepared for the Australian Research Centre in Sex, Health and Society; B Morris, ‘Domestic Violence in Lesbian Relationships’ (2008) (2) Domestic Violence Resource Centre Quarterly 21; M Pitts, A Smith, A Mitchell and S Patel, Private Lives: A Report on the Health and Wellbeing of GLBTI Australians (2006), prepared for the Australian Research Centre in Sex, Health and Society.

[46]
A Neame and M Heenan, What Lies Behind the Hidden Figure of Sexual Assault: Issues of Prevalence and Disclosure, Australian Centre for the Study of Sexual Assault Briefing (September 2003). This was also emphasised in Australian Institute of Family Studies, SubmissionFV 222, 2 July 2010.

[48]
Migrant Women’s Emergency Support Service trading as Immigrant Women’s Support Service, SubmissionFV 61, 1 June 2010. See also A Neame and M Heenan, What Lies Behind the Hidden Figure of Sexual Assault: Issues of Prevalence and Disclosure, Australian Centre for the Study of Sexual Assault Briefing (September 2003).

[51] See
discussion in National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), 97.

[52]
For example, this was raised by P Easteal, SubmissionFV 38, 13 May 2010.